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Hernandez v. American Truck Rental

CASE NO. 5083 CRB-7-06-4



APRIL 19, 2007












The claimant was represented by Christopher G. Santarsiero, Esq., 100 Grand Street, Suite 2C Waterbury, CT 06702.

The respondent American Truck Rental was represented by Robert Percy, Esq., Convicer & Percy 41 Hebron Avenue, Glastonbury, CT 06033.

The respondent Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 12, 2006 Finding and Award in Part and Dismissal in Part of the Commissioner acting for the First District was heard October 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman, John A. Mastropietro and Commissioners James J. Metro and George Waldron.


JOHN A. MASTROPIETRO, CHAIRMAN. This appeal is brought by the claimant. There is no dispute the claimant was injured in a compensable 1998 accident. The claimant challenges the adequacy of benefits he was awarded by the trial commissioner after a formal hearing. The claimant seeks to reverse the findings of the trial commissioner regarding his failure to award interest on an unpaid permanent partial disability award; the trial commissioner’s finding that the claimant’s present physician is unauthorized and the trial commissioner’s rejection of that physician’s findings in regards to a permanency rating and entitlement to temporary total disability. The claimant also alleges error as the trial commissioner did not issue a fine pursuant to § 31-288c C.G.S. against the respondent-employer for being uninsured.

Upon review of these claims of error we agree with the claimant that statutory interest should have been awarded by the trial commissioner. We do not agree with the claimant’s argument regarding the treating physician as we believe this issue must be decided by the trial commissioner. Finally, our review of the relevant statute leads us to conclude the claimant lacks standing in regards to the issue of whether a fine should issue against an uninsured employer. Therefore, we direct the trial commissioner to award interest due on the § 31-308(b) C.G.S. award and affirm the April 12, 2006 Finding and Award in Part and Dismissal in Part on all other issues.

We will deal briefly with the facts. The claimant was unloading a truck on February 10, 1998 when he injured his left leg. A voluntary agreement for that injury was approved September 28, 1998. The employer listed on the voluntary agreement was American Rental Center. Evidence at the formal hearing was that the claimant was also employed during the time period proximate to the accident by commingled entities doing business as Cypress Management and Southern Sales. The trial commissioner found there was no workers’ compensation insurance in place covering this injury.

Following the left leg injury the claimant was treated at St. Mary’s Occupational Clinic. He was released to light duty on February 11, 1998 and to regular duty on February 26, 1998. The claimant however testified the light duty work “didn’t work out.” Finding, ¶ 17. Following his visits to the St. Mary’s Occupational Clinic the claimant sought an orthopedic opinion due to persistent pain in his calf. In July 1998 the claimant started treating with Dr. Michael Kaplan. Dr. Kaplan concluded the claimant had a 5% permanent partial disability to his left leg and determined pain on his right side was due to overuse attributable to the compensable February 1998 injury. Dr. Kaplan’s permanency rating concurred with that of a respondent’s examiner, Dr. Nicholas Breyan.

In 1999 the claimant treated with Dr. Kaplan complaining of pain in his right ankle, and later complained that he reinjured his left leg while stooping over in a bank line. Dr. Kaplan attributed the need for possible surgery on the right ankle to the compensable accident, and attributed the same cause to the reinjury of the left leg. Dr. Robert Wetmore performed surgery on the right ankle in 2000. However, in 1999 a surveillance video was taken of the claimant’s activities showing him performing a number of activities without physical distress.

Following his 2000 ankle surgery the claimant visited the St. Mary’s Occupational clinic for follow-up visits. There he met a podiatrist, Dr. John McHugh, and commenced treating with Dr. McHugh.1 The trial commissioner found no authorization had been made to Dr. McHugh from a prior treating physician. Dr. McHugh prescribed Celebrex, an air cast and high top shoes for the claimant. He rated the claimant’s permanent partial disability as 50% of the left foot and 25% of the right foot.

Formal hearings began on May 29, 2002 in the Fifth District for this claim, wherein the claimant sought benefits under a number of provisions of Chapter 568, including § 31-307 C.G.S. for total disability; § 31-294d C.G.S. for medical treatment; § 31-308a C.G.S. for temporary partial disability benefits and § 31-308(b) C.G.S. for permanent partial disability. The issue of which entity employed the claimant and whether they had insurance was also an issue. This issue required the participation of the Second Injury Fund. Further hearings were held June 24, 2003 and January 7, 2004; and then held in the First District on May 18, 2005 and December 27, 2005 with the record closing on January 20, 2006.

The trial commissioner concluded based on the evidence provided that the claimant’s right foot and ankle injuries were a result of the compensable February 10, 1998 accident. He determined the medical treatment provided by St. Mary’s Occupational Clinic, including the treatment rendered by Dr. Kaplan and Dr. Wetmore, was reasonable and necessary. He determined that Dr. McHugh was not an authorized treater and his treatment was not compensable. He found Dr. Kaplan’s disability rating credible and Dr. McHugh’s ratings not credible. Therefore, he awarded a 5% permanent partial disability rating for the left leg. He awarded the claimant temporary total benefits for the period between February 12, 1998 through February 25, 1998, but declined to award benefits under § 31-308(a) and/or § 31-308a. C.G.S., determining the claimant failed to demonstrate a credible effort to find work. He did not award interest on the award. He found the respondent-employer lacked workers’ compensation insurance, but did not levy a fine or sanction.

The claimant filed a Motion to Correct from the April 12, 2006 Finding and Award in Part and Dismissal in Part. The trial commissioner denied the proposed corrections. The claimant then appealed to this board. In reviewing the appeal, we find much of its substance involves challenging the trial commissioner’s assessment of the evidence presented. As we pointed out in Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000) “[w]e may not retry a case on appeal and substitute our own findings for those of the trier.” Consequently, to the extent the claimant seeks to reverse a factual finding, rather than a legal determination, we are compelled to uphold the trial commissioner.

The claimant seeks to have this board substitute its factual findings for the trial commissioner on the issue of whether Dr. McHugh was a treating physician in the chain of authorization. The argument claimant presents is that Dr. McHugh’s involvement with the claimant’s treatment arose from similar circumstances as Dr. Wetmore and Dr. Kaplan’s treatment. We believe this is a “prototypical question of fact” for the trial commissioner to resolve. Prescott v. Community Health Center, Inc., 4426 CRB-8-01-8 (August 23, 2002). As the respondent Second Injury Fund point out in its brief, the compensability of Dr. Wetmore or Dr. Kaplan’s treatment was not disputed at the hearing. The trial commissioner reached a conclusion concerning whether Dr. McHugh’s treatment was authorized adverse to the claimant’s interest. We conclude this was an issue regarding the weight of the evidence, therefore, we conclude that he was legally permitted to reach this conclusion.2

The claimant also challenges the trial commissioner’s finding in regards to the time periods for which § 31-307 C.G.S. benefits were awarded. We have consistently held it is the claimant’s burden to establish total disability and entitlement to benefits under our statute. See Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454 (2001) and Gombas v. Custom Air Systems, Inc., 4996 CRB-4-05-9 (September 20, 2006). The claimant references his receipt of social security disability benefits and suggests this is determinative of whether he should receive § 31-307 benefits. Since the standard for awarding social security disability benefits is different than the standard to award benefits under Chapter 568 C.G.S., this argument is not persuasive. See Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004). As we previously concluded in an appeal regarding § 31-307 benefits “[i]f the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-1 (December 19, 2000).

The next issue raised in the claimant’s appeal pertains to the trial commissioner’s omission of a sanction or fine against the respondent employer after finding the employer failed to carry workers’ compensation insurance. While this is clearly an important issue, upon review of the relevant statute § 31-288(c) C.G.S., we conclude the claimant lacks legal standing to raise this issue. We reach this determination after examination of the text of the statute, which reads as follows,

(c) Whenever an investigator in the investigations unit of the office of the State Treasurer, whether initiating an investigation at the request of the custodian of the Second Injury Fund, the Workers’ Compensation Commission, or a commissioner, finds that an employer is not in compliance with the insurance and self-insurance requirements of subsection (b) of section 31-284, such investigator shall issue a citation to such employer requiring him to obtain insurance and fulfill the requirements of said section and notifying him of the requirement of a hearing before the commissioner and the penalties required under this subsection. The investigator shall also file an affidavit advising the commissioner of the citation and requesting a hearing on such violation. The commissioner shall conduct a hearing, after sufficient notice to the employer and within thirty days of the citation, wherein the employer shall be required to present sufficient evidence of his compliance with said requirements. Whenever the commissioner finds that the employer is not in compliance with said requirements he shall assess a civil penalty of not less than five hundred dollars per employee or five thousand dollars, whichever is less and not more than fifty thousand dollars against the employer.

The claimant points to the final sentence of this provision and claims that this constitutes a mandatory obligation to fine an employer when a trial commissioner finds workers’ compensation insurance is not in force. The respondent Second Injury Fund disagrees and maintains such fines cannot be levied unless they are sought by the Second Injury Fund. After considering the statute as a whole, we conclude the principles of statutory construction support the respondent Second Injury Fund’s interpretation of the statute.

“[S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void, or insignificant.” Hatt v. Burlington Coat Factory, 263 Conn. 279, 309-310 (2003). We believe that when one reads this statute as a whole it places the initial burden to seek penalties on the Second Injury Fund and its administrator, the State Treasurer. Were claimants or their legal representatives empowered to demand statutory penalties, we believe the General Assembly would have included them among the enumerated list of those empowered to make such a demand. As the Supreme Court also held in Hatt, “a statute which provides that a thing be done in a certain way carries with it an implied prohibition against doing that thing in any other way.” Id., 295.

Based on the entire text of the statute we must conclude that claimant lacks legal standing to seek the imposition of fines under this statute. “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action . . . .” Blumenthal v. Barnes, 261 Conn. 434, 441-442 (2002). “Our case law is also clear that a person cannot gain standing by asserting the due process rights possessed by another individual.” Strobel v. Strobel, 64 Conn. App. 614, 620 (2001). Therefore, as we conclude the right to demand sanctions is vested in the Second Injury Fund by statute, we must dismiss this claim of error.

As to the issue of whether claimant is entitled to statutory interest of the award, the parties are in accord. The respondent Second Injury Fund concurs with the claimant that the trial commissioner erred by not granting the claimant interest on the award pursuant to § 31-295(c) C.G.S. Upon review, we concur as well.

The relevant statute reads as follows:

(c) If the employee is entitled to receive compensation for permanent disability to an injured member in accordance with the provisions of subsection (b) of section 31-308, the compensation shall be paid to him beginning not later than thirty days following the date of the maximum improvement of the member or members and, if the compensation payments are not so paid, the employer shall, in addition to the compensation rate, pay interest at the rate of ten per cent per annum on such sum or sums from the date of maximum improvement.

The trial commissioner found that the claimant was entitled to a 5% permanent partial disability of his left leg. The record indicates that by October 9, 1998 there was no further dispute as to the permanency rating for the left leg. By that date both the claimant’s treating physician, Dr. Kaplan, and the respondent’s examiner, Dr. Breyan concurred on the 5% permanent partial disability rating and that the claimant had reached maximum medical improvement. Claimant’s Exhibit B. As previously discussed, the respondent-employer accepted this injury by way of a voluntary agreement. Since there was no dispute as to permanency rating or compensability we believe an award should have issued as of the date of maximum medical improvement. We have previously determined that the payment of interest on such an award is obligated by statute, see Schenkel, supra, hence we direct that the Finding in Part and Dismissal in Part be amended to include this element of relief.3

Therefore, we direct that statutory interest be paid on the claimant’s § 31-308(b) C.G.S. award. In all other respects we affirm the trial commissioner in this matter and dismiss the appeal.

Commissioners James J. Metro and George Waldron concur in this opinion.

1 This physician is identified as Dr. McCue in the April 12, 2006 Finding and Award in Part and Dismissal in Part. We deem this a harmless scrivener’s error. Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006). BACK TO TEXT

2 We have recently pointed out that a claimant who initiates treatment with a new physician without obtaining a referral from a treating physician or prior authorization from the Commission assumes the risk the trial commissioner will not retroactively authorize such treatment at a later date. See Anderson v. R&K Spero, 4965 CRB-3-05-6 (February 21, 2007). BACK TO TEXT

3 The claimant asserts error from the trial commissioner’s denial of its Motion to Correct. Since the Motion to Correct essentially sought to interpose the claimant’s conclusions as to the facts presented, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

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